aug0 6 2o1j - supreme court of ohiodayton, oh 45402-2017 phone: (937) 222-2424 fax: (937) 222-5369...

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IN THE SUPREME COURT OF OHIO

M. BASSEM RAYESS,

Plaintiff-Appellant,

V.

CYNTHIA P. McNAMEE, et al.

* CASE NO. 14-1129

Defendants-Appellees.

On Appeal from the MontgomeryCounty Court of Appeals, SecondAppellate District

Court of AppealsCase No. CA 25915

T.C. Case No. 2012 CV 04284

MOTION TO DISMISS OF APPELLEESCYNTHIA P.1VIcNAMEE AND PICKREL, SCHAEFFER & EBELING CO., LPA

Neil F. Freund (OH12183)(COUNSEL OF RECORD)Lindsay M. Johnson (01177753)FREUND, FREEZE & ARNOLDFifth T'hird Center1 South Main Street, Suite 1800Dayton, OH 45402-2017Phone: (937) 222-2424Fax: (937) 222-5369Fax: (937) 222-5369E-Mail: [email protected]: [email protected]

M. Bassem RayessP. 0. Box 293166Kettering, OH 45429E-Mail: [email protected]

Plaintiff-Appellant, Pro Se

Counseljbr Defendants-AppelleesCynthia P. McNamee andPickrel, Schaeffer and Ebeling Co., LPA

EAUG0 6 2o1j

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FREUND, FREEZE & ARNOLDCL^^K MF COURT A Legal Professional Association

PREME 0011 PT nC nU11,

Ie INTRODUCTION

Plaintiff-Appellant M. Bassem Rayess is no stranger to this Court or the litigation

process. As the record in the underlying case demonstrates, as well as do the various other cases

in this Court as discussed below, Plaintiff-Appellant M. Bassem Rayess ("Plaintiff-Appellant")

has relentlessly filed non-meritorious litigation for the last twelve years arising from one

incident: his failure to pass (and refusal to retake despite being permitted to do so free-of-

charge) the foreign medical graduates exam in order to be permitted to practice medicine in the

United States. He has never prevailed in a single lawsuit, which number at least five, including

two prior failed attempts to evoke this Court's jurisdiction and one failed attempt in the Supreme

Court of the United States. See, Case Nos. 2009-0999, Discretionary Appeal Denied; 2012-

0331, Discretionary Appeal Denied; 2011-1933, Certiorari Denied, December 9, 2013.

Defendants-Appellees request a determination that Plaintiff-Appellant's conduct is

frivolous under R.C. 2323.51 and S. Ct. Prac. R. 4.03(A). Defendants-Appellees likewise move

this Honorable Court for a finding that Plaintiff-Appellant is a vexatious litigator under R.C.

2323.52 and S. Ct. Prac. R. 4.03(B). Finally, Defendants-Appellees request this Court deny

Plaintiff-Appellant Rayess' Notice of Appeal and deny his request for jurisdiction in this Court

in its entirety. It is time for this saga to end and Plaintiff-Appellant's reign of harassment stop.

He has had numerous bites at the apple and countless opportunities to be heard on each and

every possible issue arising from his attempt to pass the foreign medical graduates exam twelve

years ago. Enough is enough.

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FREUND, FREEZE & ARNOLDA Legal Professional Association

II. FACTS

In the trial court case, Plaintiff-Appellant filed a lawsuit against Defendants-Appellees

alleging they committed legal malpractice. See Plaintiff-Appellant's Complaint, generally. The

facts, as alleged in Plaintiff-Appellant's Complaint, are as follows:

Prior to the instant lawsuit, Defendants-Appellees represented Plaintiff-Appellant for a

five month period from September 1993 through January 1994. Id. During the representation,

and at Plaintiff-Appellant's request, Defendant-Appellee Cynthia P. McNamee ("Defendant-

Appellee McNamee") sent a legal complaint letter to the President of Educational Commission

for Foreign Medical Graduates ("ECFMG"), Dr. Marjorie P. Wilson. Id. at ¶ 4. Plaintiff-

Appellant alleges he was aware the version of the letter that was sent contained errors, and most

importantly, did not state what laws were violated which gave the Plaintiff-Appellant legal

grounds for his legitimate demand to compensation from ECFMG. Id. Plaintiff-Appellant does

not allege that anyone other than his lawyer was responsible for known errors in the letter. Id.

On November 2, 1993, ECFMG's (which Plaintiff-Appellant has also sued concerning

his attempt to pass the foreign medical graduates exam) counsel, Mr. Bruce A. Hubbard, sent

Defendants-Appellees a response letter which Defendant-Appellee McNamee presented to

Plaintiff-Appellant sometime in November 1993. Complaint, ¶ S. Upon reading the response,

Plaintiff-Appellant informed Defendant-Appellee McNamee that ECFMG's offer and suggestion

did not satisfy him and could not be implemented since ECFMG did not offer the proper

compensation to him. Complaint, ¶ 6.

On January 4, 1994, Alan B. Schaefler, a non-party and an attorney at Pickrel, Schaeffer

& Ebeling, Co., LPA wrote a letter to the Plaintiff-Appellant terminating the attorney/client

relationship, stating "we have completed our representation on the issue you presented to us."

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Complaint, ¶ 7. Plaintiff-Appellant does not allege that he requested Defendants-Appellees

provide him with any further service after receipt of ECFMG's response letter which Plaintiff-

Appellant immediately found unacceptable or that Defendant-Appellee McNamee was to take

any further action whatsoever. See, generally, Complaint. Further, Plaintiff-Appellant does not

allege that he had planned on filing a lawsuit or taking further action against ECFMG at the time

he was represented by Defendants-Appellees. Id. He does not allege he sought counsel from

Defendants-Appellees concerning additional legal action. Id.

In November of 1995, Plaintiff-Appellant, on his own, conducted an investigation

resulting in his own personal discovery that ECFMG had administered the Uiiited State Medical

Licensing Exam Part 1 to Plaintiff-Appellant on September 21 and 22, 1993 through its

subcontractor the University of Cincinnati, which formed the basis of his complaints against

ECFMG. Complaint, ¶ 9.

Plaintiff-Appellant then applied for an orthopedic residency position at the University of

Cincinnati in the summer of 1995 (more than one year after the termination of his attorney-client

relationship with Defendants-Appellees). His application was rejected in August 1995. In

February 1995 Plaintiff-Appellant filed a charge of discrimination against the University of

Cincinnati. Shortly thereafter he filed a lawsuit against the University of Cincinnati pursuant to

42 U.S.C. § 2000e, et seq., in the United States District Court in Cincinnati, Ohio. Complaint,

10 ("UC lawsuit").

The University of Cincinnati quickly filed a Motion to Dismiss in that case under Rule

12(B)(6) of the Federal Rules of Civil Procedure claiming Plaintiff-Appellant filed his charge of

discrimination late. Plaintiff-Appellant responded by filing a Motion of Equitable Tolling and

Equitable Estoppel, alleging the attorneys he consulted with, among them Defendant-Appellee

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FREUND, FREEZE & ARNOLDA Legad Professional Association

McNainee, did not advise him earlier to file a charge of discrimination. .Id at ¶ 11. The trial

court dismissed the complaint against the University of Cincinnati. Id. at ¶ 12. Plaintiff-

Appellant appealed the trial court's dismissal.

Plaintiff-Appellant admits in Paragraph 12 of the Complaint that the Sixth Circuit Court

of Appeals specifically directed Plaintiff-Appellant as follows in its decision of February 10,

1998: "Rayess also argues in his brief that any failings in his pursuit of a remedy can be ascribed

to various attorneys he consulted. An allegation of ineffective assistance by private counsel in a

civil case is not a basis for overturning ajudgment." See Complaint, ¶ 12. Plaintiff-Appellant's

Complaint is silent as to the "various attorneys he consulted." Id. However, in Paragraph 14 of

the Complaint, Plaintiff-Appellant admits he "consulted with several attorneys who gave

different opinions about the case." Plaintiff-Appellant claims these consultations occurred

during a fifteen (15) year period -- between 1993 and September 19, 2008. Id. at ¶ 14.

Plaintiff-Appellant admits that even had he filed claims against the University of

Cincinnati earlier, the District Court and the Court of Appeals would lack jurisdiction on those

claims. See Complaint, ¶ 13. On September 19, 2008 Plaintiff-Appellant filed a lawsuit against

ECFMG and later refiled it on October 16, 2009. Id. at ¶ 14 ("ECFMG lawsuit"). The case was

dismissed on June 3, 2010 due to the expiration of the statute of limitations. Plaintiff-Appellant

asserts the dismissal of this lawsuit was the cognizable event that triggered the statute of

limitations in the instant lawsuit against Defendants-Appellees. Id. at ¶16.

Quickly running out of people and entities to sue as a result of his failure to pass the

foreign medical graduates exam, Plaintiff-Appellant filed this lawsuit against Defendants-

Appellees on June 3, 2011. The case was quickly voluntarily dismissed on June 13, 2011, and

re-filed on June 12, 2012. ("PS&E lawsuit").

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Plaintiff-Appellant re-filed this case, and long before an answer or responsive pleading

was due, undersigned counsel filed a notice of appearance and a motion to extend time to file an

Answer or otherwise plead up to July 25, 2012. On July 24, 2013, Plaintiff-Appellant filed a

conditional motion for default judgment. On July 25, 2012, Defendants-Appellees filed a motion

to dismiss Plaintiff-Appellant's claims based upon the expiration of the statute of limitations for

legal malpractice claims and failure to state a claim upon which relief can be granted. Plaintiff-

Appellant filed a motion to stay the case until the United States Supreme Court ruled on his

petition for writ of certiorari in Rayess v. ECF1l^IG (which the United States Supreme Court

denied on December 9, 2013). On August 19, 2013, the trial court denied Plaintiff-Appellant's

motion to stay and granted Defendants-Appellees' motion to dismiss. Ultimately, the trial court

held Plaintiff-Appellant discovered or should have discovered the cognizable event by the end of

Defendants-Appellees' representation of Plaintiff-Appellant on January 4, 1994.

Plaintiff-Appellant appealed the trial court's decision to the Second District Court of

Appeals, Montgomery County, Ohio. The parties briefed the issues and oral arguments were

heard on May 13, 2014. On May 23, 2014, after extensive briefing and oral argument (in which

Plaintiff-Appellant was permitted to argue his position to the panel well-beyond the fifteen-

minute limit) the Second District issued its opinion affirming the trial court's decision.

Ultimately, the appellate court found: (1) the trial court did not err in denying Plaintiff-

Appellant's motion for default judgment and allowing Defendants-Appellees to file an answer or

otherwise respond; (2) the trial court did not err in denying Plaintiff-Appellant's motion to

extend a confidentiality order; (3) the trial court did not err in sustaining Defendants-Appellees'

motion to dismiss on statute of limitation grounds; and (4) the trial court did not err in denying

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Plaintiff-Appellant's motion for exemption for court costs. See, Second Appellate District

Opinion, rendered May 23, 2014.

On July 7, 2014, Plaintiff-Appellant filed his Notice of Appeal and Memorandum in

Suppor-t of Jurisdiction in this Honorable Court. Plaintiff-Appellant's Memorandum in Support

of Jurisdiction addresses two errors: (1) the trial court's granting of an extension of time for

Defendants-Appellees to file an Answer or otherwise plead to Plaintiff-Appellant's Complaint;

and (2) the trial court and appellate court's finding that the statute of limitations had expired on

Plaintiff-Appellant's legal malpractice claim. There is no existing law or argument for the

establishment of new law supporting Plaintiff-Appellant's claims. Instead, he is needlessly

increasing the cost of litigation. For the reasons and the evidence articulated below, Defendants-

Appellees respectfully request this Honorable Court dismiss Plaintiff-Appellant's lawsuit in its

entiretv and issue an order declaring Plaintiff-Appellant's conduct frivolous under R.C. 2323.51

and S. Ct. Prac. R. 4.03(A). Likewise, Defendants-Appellees move this Court for a finding that

Plaintiff-Appellant is a vexatious litigator under R.C. 2323.52 and S. Ct. Prac. R. 4.03(B). This

Court should dismiss Plaintiff-Appellant's request for jurisdiction.

III. LAW AND ARGUMENT

A. Plaintiff-Appellant's conduct is frivolous under R.C. 2323.51 and S. Ct. Prac.R. 4.03(A).

Plaintiff-Appellant's pattern of litigious action falls squarely within the definition of

"frivolous conduct" under R.C. 2323.51. Under R.C. 2323.51, "frivolous conduct" is defined as

the conduct of a party in a civil action, including filings of pleadings, motions, or other papers in

a civil action, that satisfies any of the following:

(1) Conduct that "obviously serves merely to harass or maliciously injure anotherparty to the civil action or appeal or is for another improper purpose,

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including, but not limited to, causing unnecessary delay or a needless increasein the cost of litigation;"

(2) Conduct that "is not warranted under existing law, cannot be supported by agood faith argument for an extension, modification, or reversal of existinglaw, or cannot be supported by a good faith argument for the establishment ofnew law;"

(3) Conduct that "consists of allegations or other factual contentions that have noevidentiary support or, if specifically so identified, are not likely to haveevidentiary support after a reasonable opportunity for further investigation ordiscovery;" or

(4) Conduct that "consists of denials or factual contentions that are not warrantedby the evidence or, if specifically so identified, are not reasonably based on alack of information or belief."

R.C. § 2323.51(A)(2)(a)(i)-(iv).

Supreme Court Practice Rule 4.03(A) likewise allows sanctions to be imposed on a party

who has engaged in conduct considered "frivolous." According to the rules of this Honorable

Court, "An appeal or other action shall be considered frivolous if it is not reasonably well-

grounded in fact or warranted by existing law or a good faith argument for the extension,

modification, or reversal of existing law." S. Ct. Prac. R. 4.03(A). If the Supreme Court

determines that an appeal is frivolous, the Court may impose appropriate sanctions. Id. "The

sanctions may include an award to the opposing party of reasonable expenses, reasonable

attorney fees, costs....or any other sanction the Supreme Court considers just." Id. It is clear

Plaintiff-Appellant's appeal is not reasonably well-grounded in fact or warranted by existing law.

Accordingly, Defendant-Appellees request sanctions against Plaintiff-Appellant and an award of

reasonable expenses, attorney fees, costs, or any other sanction this Honorable Court considers

just pursuant to S. Ct. Prac. R. 4.03(A).

8


1. Plaintiff-Appellant's conduct serves merely to harass and maliciouslyinjure the Defendants-Appellees and needlessly increase the cost oflitigation.

Plaintiff-Appellant's conduct serves merely to harass and maliciously injure the

Defendants-Appellees, including needlessly increasing the cost of litigation. In Ohio "pro-se

litigants are bound by the same rules and procedures as litigants with retained counsel." Cat-The

Rental Store v. Sparto, 2002 Ohio App. LEXIS 636, *5 (12th Dist. 2002). Pro-se litigants "are

not to be accorded greater rights and are bound to accept the results of their own mistakes and

errors, including those related to correct legal procedure." Id. In this respect, "the rnere fact that

a party is acting pro se does not shield that party from a finding of frivolous conduct." Mitchell

v. Mid-Ohio EnaeNgency Ser°vs., L.L.C., 2010 Ohio 6350, ¶27 (10th Dist. 2010).

In Mitchell v. Mid-Ohio EmeNgency Services, L. L. C. ("Mitchell"), plaintiff; a former

employee, challenged a decision from the Franklin County Court of Common Pleas, Ohio, which

detertnined that he had engaged in frivolous conduct under R.C. 2323.51. Id, at ¶1. Plaintiff

filed an action against his former employer alleging a wrongful termination in violation of public

policy. Id. at ¶2. The trial court eventually granted summary judgment against the plaintiff on

all claims. Id. at ¶3. After summary judgment was granted, plaintiff filed a Civ. R. 60(B)

motion for relief from judgment, alleging that the summary judgment was obtained through a

course of fraudulent activity of the defendant and defendant's counsel. Id. at ¶4. In response,

the defendants filed a motion for sanctions and a motion to declare plaintiff's conduct frivolous

under R.C. 2323.51. Id. at ¶5. Ultimately, the trial court denied plaintiff's Rule 60(B) motion.

Id. at ¶6.

During the time the defendant's claim for frivolous conduct was pending, plaintiff filed

numerous motions with the trial court, including: additional discovery requests, protective

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orders from deposition, numerous pleadings purporting to set forth supplemental authority in

support of plaintiff s memorandum contra to the motions for sanctions, voluminous pleadings

involving plaintiffs claims regardingthe purported fraud, and a motion seeking leave to file a

second Civ. Rule 60(B) motion. Id. at ¶¶ 7-10. In the end, the trial court denied plaintiff's

motion to file a second Rule 60(B) motion, and declared plaintiff's conduct frivolous. Id. at ¶10,

14.

On appeal, and specifically related to the issue of frivolous conduct under R.C.

2323.5 1 (A)(2)(a)(i), plaintiff argued that his conduct was not frivolous nor did it serve merely to

harass or maliciously injure the defendant. The appellate court upheld the trial court, stating that

the "sheer volume of filings appellant made in support of his contentions, as well as the

inflammatory nature of the assertions made against defendants' counsel, are sufficient to support

the trial court's conclusion that plaintiffs conduct was for the puipose of merely harassing or

injuring defendants." Id. at ¶26 (emphasis added).

In the case at bar, as in Mitchell, Plaintiff-Appellee has engaged in a reign of litigation

harassment, suing each and every entity and individual directly or tangentially involved in his

initial attempt to pass the foreign medical graduates exam, including Defendants-Appellees who

he initially retained to assist him. He has never prevailed on any issue in any court. He has filed

motion after motion after motion despite the fact his claims are not supported by any existing law

or good faith argument for modification of the law. He has refusecl to acknowledge the realities

of his claims - that they are not actionable.

Even more troubling and perplexing is the fact that in twelve years he has refused to sit

again for the foreign medical graduates exam in order to be afforded the opportunity to practice

medicine in this country as he allegedly did in Syria. Instead, Plaintiff-Appellee remains

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generally unemployed, fixated on filing lawsuit after lawsuit each stemming from his attempt to

pass the test more than a decade ago.

His conduct is unsupported in law, his claims have been filed and reviewed by five

different courts. It is time Plaintiff-Appellee's actions be declared frivolous and that this

Honorable Court deem him a vexatious litigator. His request for jurisdiction should be

dismissed.

2. Plaintiff-Appellant's conduct is not warranted under existing law, andcannot be supported by a good faith argument for an extension,modification, or reversal of existing law.

Plaintiff-Appellant's Notice of Appeal and Memorandum in Support of Jurisdiction

complains of two errors: (1) the trial court improperly granted Defendants-Appellees an

extension of time to file an Answer or otherwise plead to Plaintiff-Appellant's Complaint; and

(2) the trial court's and appellate court's detei°mination that the statute of limitations expired on

Plaintiff-Appellant's legal malpractice claim.

Plaintiff-Appellant continues to argue the trial court erred when it granted Defendants-

Appellees motion to extend the responsive pleading deadline. By way of backgrouitd, Plaintiff-

Appellant filed his Complaint in the trial court on June 12, 2012. Defendants-Appellees'

response to Plaintiff-Appellant's Complaint was due on or before July 12, 2012. On July 5,

2012, undersigned counsel filed a notice of appearance. On July 9, 2012, Defendants-Appellees

filed a motion to extend time to file an Answer or otherwise plead because undersigned counsel

had been recently retained and had yet to obtain and fully review all of the documents associated

with this very aged matter and meet with Defendants-Appellees due to the press of business,

including but not limited to trial, travel, and out-of-town depositions. Defendants-Appellees

informed the trial court they would file a response to Plaintiff-Appellant's Complaint on or

11


before July 25, 2012, just thirteen (13) days beyond the Answer date. Defendants-Appellees did

in fact respond to Plaintiff-Appellant's Complaint on July 25, 2012 by filing a motion to dismiss.

Just one (1) day prior to the filing of Defendants-Appellees' motion to dismiss, Plaintift=

Appellant filed a motion for default judgment.

The law on this procedural issue could not be clearer and therefore there is no basis for a

claim of error by the court: Ohio Civil Rule 6(B) specifically allows an extension of time to

respond to a complaint. Civ. R. 6(B) provides:

When by these rules or by a notice given thereunder or by order of court an act isrequired or allowed to be done at or within a specified time, the court for causeshown may at any time in its discretion ( 1) ivith or without motion or noticeorder the period enlarged if request therefor is made before the expiration of theperiod originally prescribed...or (2) upon motion made after the expiration of thespecified period permit the act to be done where the failure to act was the result ofexcusable neglect...

Civ. R. 6(B) (emphasis added). As the appellate court explained, "...the trial court had

discretion to extend the filing deadline for `cause shown' because PS&E and McNamee made

their request before the time to answer had expired." See, Second Appellate District Opinion,

rendered May 23, 2014, at ¶8; See also, Bentley v. Grey Fox Homes, Ltd., 184 Ohio App.3d 276,

2009-Ohio-5038, 920 N.E.2d 438 (2nd Dist.). A showing of exeusable neglect was not required

under Civ. R. 6(B). Likewise, the law does not require the filing of an affidavit. Accordingly,

Plaintiff-Appellant's persistent argument to the contrary is absolutely not warranted under

existing law, nor can it be supported by a good faith argument for a modification to existing law.

It is frivolous and should be dismissed.

Plaintiff-Appellant's Memorandum in Support of Jurisdiction also addresses the issue of

when Plaintiff-Appellant's cognizable event occurred, triggering the statute of limitations on his

legal malpractice claim against Defendants-Appellees. Plaintiff-Appellant's argument cannot be

12


supported by existing law, nor can be it supported by a good faith argument for a modification to

existing law.

"Under R.C. 2305.11(A), an action for legal nialpractice accrues and the statute oflimitations begins to run when there is a cognizable event whereby the clientdiscovers or should have discovered that his injury was related to his atkorney'sact or non-act and the client is put on notice of a need to pursue his possibleremedies against the attorney or when the attorney-client relationship for thatparticular transaction or undertaking terminates, whichever occurs later."

Zimmie v. Calfee, Halter and Griswold, 43 Ohio St.3d 54, 58, 538 N.E.2d 398, 401 (1989).

Defendants-Appellees' motion to dismiss (granted by the trial court and affirmed by the

appellate court) is based, in part, on a statute of limitations defense. "A statute of limitations

defense is an affirmative defense, per Civ. R. 8(C), that ordinarily cannot be the basis of a Civ.

R. 12(B)(6) motion to dismiss for failure to state a claim on which relief may be granted. An

exception exists when the complaint demonstrates the statute of limitations violation." Gessner

v. Vore, 2nd Dist. No. 22297, 2008-Ohio-3870, ¶13; See, also Doe v. Archdiocese of Cincinnati,

109 Ohio St.3d 491, 2006-Ohio-2625, 849 N.E.2d 268, ¶11 ("A motion to dismiss based upon

the statute of limitations may be granted when the complaint shows conclusively on its face that

the action is time-barred.").

As held by the appellate court, Plaintiff-Appellant's Complaint clearly demonstrates on

its face that he filed this initial lawsuit many years after one of many cognizable events. "A

`cognizable event' is an event that places a reasonable person on notice that a questionable legal

practice may have occurred, and the person might need to pursue remedies against his attorney."

Deutsch v. Keating, Muething & Klekamp, L.L.P., 2nd Dist. No. 20121, 2005-Ohio-206, ¶17.

Importantly, Ohio law clearly states a plaintiff does not have to understand the extent of the

alleged legal problem or the extent of any injury, as the Second District held. Flowers v. Walker

13


(1982), 63 Ohio St.3d 546, 549, 589 N.E.2d 1284 (emphasis added). Plaintiff-Appellant's

Complaint lists a plethora of dates which should have put Plaintiff-Appellant on notice of a

potential legal malpractice claim. All of these possible dates occur outside the one-year statute

of limitations. The trial court did not err when it granted Defendants-Appellees motion to

dismiss, and the appellate court correctly affirmed the trial court's decision. There is no

reasonable basis in law or fact to permit Plaintiff-Appellant to continue to litigate these issues.

Unsatisfied with the decisions of the lower courts in this case and the numerous other

cases and the clear Ohio law, Plaintiff-Appellant now brings forth a new, creative argument in

his Memorandum in Support of Jurisdiction, stating, "A cognizable event cannot trigger the

statute of limitations of O.R.C. 2305.11(A) to run if the trial court violates due process..." See,

Plaintiff-Appellant's Memorandum in Support of Jurisdiction, p. 12. Plaintiff-Appellant accuses

the lower courts of placing him under duress by failing to extend the confidentiality order issued

in anotlier case. Id. Thus, he argues the statute of limitations should not start to run until the

circumstances change to lift the undue duress. Id. Again, the appellate court clearly found that

Plaintiff-Appellant had obtained the confidentiality order in a separate case he filed against the

Educational Commission for Foreign Medical Graduates. See, Second Appellate District

Opinion at ¶10. Defendants-Appellees were not parties to that lawsuit, nor were they in privity

with the Commission simply because they were represented by the same law firm while

defendants in separate suits. Id. Moreover, the trial court's dismissal of the present action on

statute of limitations grounds rendered any confidentiality issue in this case moot, Id.

No matter, regardless of the manner in which Plaintiff-Appellant attempts to argue that

the cognizable event did not occur until June 3, 2010, or that the statute of limitations should be

tolled beyond the cognizable event due to duress, Ohio law clearly demonstrates the statute of

14


limitations has long-since expired on Plaintiff-Appellant's legal malpractice claim. Plaintiff-

Appellant's Complaint clearly demonstrates that the latest possible cognizable event occurred in

2009. Therefore, the filing of his legal malpractice claim against Defendants-Appellees had long

expired when he filed suit on June 3, 2011. As the appellate court correctly pointed out, any

issue regarding the confidentiality order is moot based on the trial court's dismissal of the

present action on statute of limita.tion grounds. Accordingly, Plaintiff-Appellant's argument to

the contrary is not warranted under existing law, nor can it be supported by a good faith

argument for a modification to existing law. These arguments, like the others, are frivolous.

They should be dismissed.

B. Plaintiff-Appellant is a Vexatious Litigator under R.C. 2323.52 and S. Ct.Prac. R. 4.03(B).

Under R.C. § 2323.52, a "vexatious litigator" is defined as the following:

[A]ny person who has habitually, persistently, and without reasonable groundsengaged in vexatious conduct in a civil action or actions, whether in the court ofclaims or in a court of appeals, court of common pleas, municipal court, or countycourt, whether the person or another person instituted the civil action or actions,and whether the vexatious conduct was against the same party or against differentparties in the civil action or actions ....

R.C. 2323.52(A)(3)(emphasis added). In turn, "vexatious conduct" is defined as any of the

following: (i) "conduct [that] obviously serves merely to harass or maliciously injure another

party to the civil action;" (ii) "conduct [that] is not warranted under existing law and cannot be

supported by a good faith argunient for an extension, modification, or reversal of existing law;"

or (iii) "conduct [that] is imposed solely for delay." R.C. 2323.52(A)(2)(a)-(c). Further, S. Ct.

Prac. R. 4.03(B) states a party may be found to be a "vexatious litigator" if the party

". .. habitually, persistently, and without reasonable cause engages in frivolous conduct under

division (A) of this rule..." S. Ct. Prac. R. 4.03(B).

15


In Ealy v. McLin, the plaintiff filed a lawsuit against the defendants alleging a violation

of his constitutional rights and seeking damages of $1,000,000. Ealy v. McLin, 2007 Ohio 4080,

¶3 (2nd Dist. 2007). The defendants responded by filing a counterclaim to declare the plaintiff a

vexatious litigator under R.C. 2323.52 and sought an order prohibiting the plaintiff from

instituting or continuing legal proceedings without leave of court. Id. at ¶4. The defendants later

moved for summary judgment on their counterclaim, and attached as support for their

counterclaim certified copies of court records from four other lawsuits previously filed by the

plaintiff. Id. at ¶10. The trial court granted the defendants motion for summary judgment on

their counterclaim, stating that the plaintiff met the statute's definition of "vexatious conduct."

Id. at ¶17. The appellate court upheld the trial court's granting of summary judgment on the

vexatious litigator counterclaim. Id. at ¶I9.

The appellate court held that the plaintiff had engaged in vexatious conduct as a matter of

law. Id. at ¶26. The appellate court's finding is consistent with the trial court's ruling, which

stated, "Plaintiff s actions in filing this instant lawsuit, as well as his filing of the four other pro

se in forma pauperis lawsuits against the City of Dayton and its employees and officials within a

six-month period are not warranted by existing law and cannot be supported by a good faith

argument for an extension or reversal of existing law." Id. at ¶25. Moreover, the court found

that the plaintiff's conduct over such a short period of time "habitual and persistent." Id.

As in Ealv, Plaintiff-Appellant in the instant case matches the statutory definition of a

"vexatious litigator." He has filed at least five lawsuits alleging claims arising out of the single

incident involving the foreign medical graduates exam. He has not prevailed in a single lawsuit

and has repeatedly and unsuccessfully litigated issues of timely filing of claims and statutes of

limitations. He has lost in every court, at every stage. His claims are not warranted by existing

16


law or a good faith argument for the modification of existing law. Instead, Plaintiff-Appellant's

request for jurisdiction in this Honorable Court is designed to perpetuate his legacy of

intentionally harming parties with non-meritorious and frivolous litigation. He is a vexatious

litigant and this Honorable Court should put an end to twelve years of manipulation and

harassment.

IV. CONCLUSION

Plaintiff-Appellant's claims are frivolous and are not reasonably supported by the law or

a change in the law. He has filed at least five lawsuits all stemming from his inability to pass the

foreign medical graduates exam. He has litigated the statute of limitations issues multiple times

and has been told by the courts the claim lacks merit. This attempt to seek review by this

Honorable Court is no different. Further, his claims that the trial court erred in granting

Defendants-Appellees' request for an extension of time to answer or otherwise plead is

completely contrary to the Ohio Rules of Civil Procedure which explicitly permit the extension

granted by the court.

Enough is enough. Plaintiff-Appellant has had many chances to be heard on the various

issues he presents here. He filed and prosecuted the ECFMG lawsuit, including appeals, the UC

lawsuit, including appeals, and now the PSE lawsuit, including appeals. He has never prevailed.

Justice has been done and he should not be permitted to continue harassing parties on issues that

lack any reasonable basis in law or fact and are not colorable claims in this Court. For these and

the foregoing reasons, Defendants-Appellees respectfully request this Honorable Court dismiss

Plaintiff-Appellant's claims as they are frivolous and have no reasonable basis in law. Further,

this Honorable Court should declare Plaintiff-Appellant a vexatious litigator pursuant to the

Supreme Court Rules of Practice. Absent such a declaration, Plaintiff-Appellant will continue to

17


file harassing litigation against each and every party or entity even tangentially involved with his

inability to pass the examination. This Motion is filed in good faith and with support that

Plaintiff-Appellant's claims are frivolous and that he is a vexatious litigator.

Respectfully submitted,

^ ^

Neil : FreundH12183)(COUNSEL OF RECORD)Lindsay M. Johnson (OH77753)FREUND, FREEZE & ARNOLDFifth Third Center1 South Main Street, Suite 1800Dayton, OH 45402-2017Phone: (937) 222-2424Fax: (937) 222-5369E-Mail: callisonaffalaw.comE-Mail: lj ohnson!aUfalaw. com

Attorneys for Defendants-Appellees,Cynthia P. McNamee and Pickrel, Schaefferand Ebeling Co., LPA

CERTIFICATE OF SERVICE

I hereby certify that a true and accurate copy of the foregoing was served this 5^'-day ofAugust, 2014, via electronic notification and/or regular U.S. Mail, postage prepaid, upon thefollowing:

M. Bassem RayessP. O. Box 293166Kettering, OH 45429Pro Se Plaintiff-Appellant

Neil 7Freun L nds M. Johnson

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FREtiND, FREEZE & ARNOLDA Legal Professional Association

aug0 6 2o1j - supreme court of ohiodayton, oh 45402-2017 phone: (937) 222-2424 fax: (937) 222-5369...

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